ACCEPTED
03-16-00071-CV
12444515
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/30/2016 1:32:30 PM
JEFFREY D. KYLE
CLERK
Appeal Cause No. 03-16-00071-CV
FILED IN
3rd COURT OF APPEALS
In the AUSTIN, TEXAS
Third Court of Appeals 8/30/2016 1:32:30 PM
Austin, Texas JEFFREY D. KYLE
Clerk
Jeremie Gordon and Amber Arnold-Gordon,
Appellants/Defendants,
v.
James B. Nickerson and Julia A. Nickerson, Trustees of the Nickerson
Revocable
Living Trust,
Appellees/Plaintiffs.
From the 250th District Court for Travis County, Cause No. D-1-GN-15-
000917,
The Honorable Karin Crump, Presiding.
APPELLEES’ BRIEF IN RESPONSE
Jason W. Snell
Bar No. 24013540
John Robert Skrabanek
Bar No. 24070631
The Snell Law Firm, P.L.L.C.
221 West 6th Street, Suite 900
Austin, Texas 78701
Telephone: (512) 477-5291
Facsimile: (512) 477-5294
Email: firm@snellfirm.com
ATTORNEYS FOR APPELLEES
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF AUTHORITIES ................................................................................... iv
STATEMENT REGARDING ORAL ARGUMENT ........................................... viii
COUNTERSTATEMENT OF THE CASE ...............................................................1
I. SUMMARY OF APPELLEES’ RESPONSE...............................................6
II. ARGUMENT IN RESPONSE ......................................................................7
A. Two separate standards of review apply to the trial court’s final judgment
in this case. ....................................................................................................7
1. The standard of review in an appeal from a permanent injunction is
whether a clear abuse of discretion occurred. ........................................7
2. The standard of review in an appeal from the confirmation of an
arbitrator’s award is de novo but “extremely narrow.” ..........................8
B. The Gordons waived all arguments regarding the illegality of the contract
by failing to object to the district court. ........................................................9
C. The contract in question is not illegal. ........................................................12
1. There is no illegality on the face of the contract. ...................................... 12
2. Even if the contract were illegal in theory, it is not void because it can
be performed in a legal manner. .................................................................... 14
D. The district court’s final judgment resolves any issues regarding the
potential illegality of the contract. ..............................................................16
1. Texas Property Code § 12.002(g) allows the property to be subdivided
and sold through a court order. ........................................................... 16
i
2. The district court’s final judgment orders the property to be sold and is
therefore a “partition by a court” under Property Code § 12.002(g). ....
.... ……………………………………………………………………17
3. The Gordons’ fear of criminal prosecution is unfounded .................. 19
E. The district court did not modify the arbitrator’s ruling. ............................19
1. The plain text of the district court’s order confirms the ruling. ...........19
2. The additional damages awarded to the Nickersons were not related to
arbitration and therefore are not a modification to the arbitrator’s
award.....................................................................................................20
3. The district court’s award of additional damages is a “cost” or
“disbursement” under Civil Practice & Remedies Code § 171.091(b).
..............................................................................................................21
F. The district court did not err in awarding attorney’s fees. ..........................22
1. Fees were available under Civil Practice & Remedies Code § 38.001
for breach of the MSA. .........................................................................22
2. Attorney’s fees were available for efforts to confirm the arbitration
award.....................................................................................................25
3. The fees were not “non-segregated.”....................................................25
G. All the remaining points of error asserted by the Gordons are without
merit. ...........................................................................................................27
III. CONCLUSION AND PRAYER FOR RELIEF .........................................30
CERTIFICATE OF COMPLIANCE ...................................................................32
CERTIFICATE OF SERVICE ............................................................................32
ii
APPENDIX………………………………………………………………………33
iii
TABLE OF AUTHORITIES
Cases
After Hours, Inc. v. Sherrard, 456 S.W.2d 227, 229 (Tex. App.—Austin 1970,
rev’d on other grounds) ........................................................................................13
Air Routing Int’l Corp. v. Britannia Airways, Ltd., 150 S.W.3d 682 (Tex. App.—
Houston [14th Dist.] 2004, no pet.) ......................................................................27
Bailey & Williams v. Westfall, 727 S.W.2d 86, 90 (Tex. App.—Dallas 1987, writ
ref’d n.r.e.) ..............................................................................................................9
Bank of Am., N.A. v. Hubler, 211 S.W.3d 859, 865 (Tex. App.—Waco 2006, pet.
granted, judgm’t vacated w.r.m.)..........................................................................23
CRC-Evans Pipeline Int’l v. Myers, 927 S.W.2d 259, 262 (Tex. App.—Houston
[1st Dist.] 1996, no writ) ........................................................................................8
Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 429 (Tex. App.—Dallas 2004, pet.
denied) ............................................................................................................. 9, 19
CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 238-39 (Tex. 2002) ..........................9
Executone Info. Sys., Inc. v. Davis, 26 F.3d 1314, 1331 (5th Cir. 1994) ................25
Franco v. Slavonic Mut. Fire Ins., 154 S.W.3d 777, 784-85 (Tex. App.—Houston
[14th Dist.] 2004, no pet.) ....................................................................................12
Franklin v. Jackson, 847 S.W.2d 306, 309, 310 (Tex. App.—El Paso 1992, writ
denied) ........................................................................................................... 14, 15
Herring v. Heron Lakes Estates Owners Association, No. 14-09-00772-CV, 2011
Tex. App. LEXIS 5 (Tex. App.—Houston [14th Dist.] 2011, pet. dismissed .........
....................................................................................................................... 24, 25
Hisaw & Assoc. Gen. Contractors, Inc. v. Cornerstone Concrete Sys., Inc., 115
S.W.3d 16, 18 (Tex. App.—Fort Worth 2003, pet. denied) ............................ 9, 27
iv
In re Chestnut Energy Partners, Inc., 300 S.W.3d 386, 397 (Tex. App.—Dallas
2009, pet. denied) ...................................................................................................8
IPCO-G & C Joint Venture v. A.B. Chance Co., 65 S.W.3d 252, 255-56 (Tex.
App.—Houston [1st Dist.] 2001, pet. denied)........................................................9
Lee v. Bowles, 397 S.W.2d 923, 926 (Tex. Civ. App.—San Antonio 1965, no writ)
................................................................................................................................7
Lewis v. Davis, 145 Tex. 468, 472, 199 S.W.2d 146, 148-49 (1947)…………13, 14
Lincoln Nat’l Life Ins. Co. v. Rittman, 790 S.W.2d 791, 794 (Tex. App.—Houston
[14th Dist.] 1990, no writ) ....................................................................................30
Mariner Fin. Group, Inc., 79 S.W.3d at 35 ...............................................................8
McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005) ..........................8
Mullin v. Nash-El Paso Motor Co., 250 S.W. 472, 475 (Tex. Civ. App.—El Paso
1923, writ ref’d) ....................................................................................................13
Nat’l Bank v. Sandia Mortg. Corp., 872 F.2d 692 (5th Cir. 1989)..........................23
Priest v. Texas Animal Health Comm’n., 780 S.W.2d 874, 875-876 (Tex. App.—
Dallas 1989, no writ)) .............................................................................................7
Scoville v. Springpark Homeowner’s Association, Inc., 784 S.W.2d 498, 502 (Tex.
App.—Dallas 1990, writ denied)..........................................................................13
Stage Stores, Inc. v. Gunnerson, 477 S.W.3d 848, 863-64 (Tex. App.—Houston
[1st Dist.] 2015, no pet.) .......................................................................................25
Statewide Remodeling, Inc. v. Williams, 244 S.W.3d 564, 567-68 (Tex. App.—
Dallas 2008, no pet.) ...............................................................................................9
Teleometrics Int’l, Inc. v. Hall, 922 S.W.2d 189, 193 (Tex. App.—Houston [1st
Dist.] 1995, writ denied) .........................................................................................8
TMC Worldwide, L.P. v. Gray, 178 S.W.3d 29, 36 (Tex. App.—Houston [1st Dist.]
2005, no pet.) ..........................................................................................................8
Tyra v. Houston, 822 S.W.2d 626, 631 (Tex. 1991)........................................... 7, 27
v
Wade v. Jones, 526 S.W.2d 160, 162-63 (Tex. Civ. App.—Dallas 1975, no writ).....
....................................................................................................................... 14, 15
Wal-Mart Stores v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999) ................... 12, 21
Statutes
Black’s Law Dictionary (9th Ed.) (2009) ......................................................... 18, 21
Tex. Civ. Prac. & Rem. Code § 171.091(b) .............................................................21
Tex. Civ. Prac. & Rem. Code § 171.091(b)(1) ........................................................22
Tex. Civ. Prac. & Rem. Code § 171.091(b)(2) ........................................................21
Tex. Civ. Prac. & Rem. Code § 38.001 ............................................................ 22, 23
Tex. Civ. Prac. & Rem. Code § 38.001(8) ........................................................ 23, 31
Tex. Loc. Gov’t Code § 212.004 ................................................................................9
Tex. Loc. Gov’t Code § 232.001 ................................................................................9
Tex. Loc. Gov’t Code § 212.018(a) .........................................................................19
Tex. R. App. P. 33.1........................................................................................... 11, 21
Tex. R. App. P. 44.1(a) .............................................................................................27
Tex. R. Civ. P. 43.4 ..................................................................................................31
Tex. R. Civ. P. 683 ............................................................................................ 27, 29
Tex. Prop. Code § 12.002(c). ...................................................................................17
Tex. Prop. Code § 12.002(g) ....................................................................... 16, 17, 18
vi
STATEMENT REGARDING ORAL ARGUMENT
Appellees do not believe that oral argument is necessary in this matter. The
written record is substantially developed such that oral argument would not
reasonably aid the Court’s decisional process.
vii
COUNTERSTATEMENT OF THE CASE
This is an appeal from Appellees James B. Nickerson and Julia A.
Nickerson’s (“the Nickersons”) suit against Appellants Jeremie Gordon and Amber
Arnold-Gordon (“the Gordons”) to compel the Gordons to sell a portion of their lot
to the Nickersons. The Nickersons own a home located at 14258 FM 2769,
Leander, TX 78641, where they live with their three children and use as their
family homestead. The Gordons own the adjacent lot, which is not their primary
residence. C.R. at 46. The prior owners of both lots in question signed a Well Use
Easement Agreement (“easement”) that grants the Nickersons an “irrevocable,
exclusive, perpetual easement” to use the water well on the Gordons property,
which serves as the sole source of water to the Nickersons’ homestead property.
C.R. at 13-18. The owners prior to the Nickersons paid for the costs of using and
maintaining the well and also used it as their sole source of water dating as far
back as 1995. C.R. at 46 ¶ 14-16; C.R. at 19-24.
In January 2015, Jeremie Gordon wrote to the Nickersons informing them of
his intention to disconnect the well piping so that the Nickersons would no longer
be able to use the well. C.R. at 18 ¶ 4; C.R. at 29. The Nickersons then filed suit
against the Gordons to prevent the Gordons from taking their only access to
potable water.
Page 1 of 33
On May 11, 2015, after mediation with Claude Ducloux (“mediator” or
“arbitrator”), the parties reached an arrangement whereby the Nickersons agreed to
buy the portion of the Gordons’ land on which the well was located (the
“conveyance property”) outright for $32,500.00, thereby resolving any issues
surrounding the Nickersons’ access to the well via the easement. C.R. at 67-69.
The negotiated Mediated Settlement Agreement (“MSA”) between the parties
called for the Nickersons to survey the portion of the property they were buying
and to close within sixty days. Id. at 67 ¶ 1. The parties also agreed that “the rights
of [the Nickersons] to continued use of the well shall be exclusive and remain
uninterrupted.” Id. ¶ 8. Thereafter, the parties would work together to vacate the
prior easement agreement. Id. ¶ 4. Finally, the parties agreed to arbitrate any
disputes related to the agreement with the arbitrator and that such arbitration would
be binding on the parties. Id. at 68.
Thereafter, a dispute arose surrounding the placement of the conveyance
property’s boundary line. This dispute was successfully arbitrated in favor of the
Nickersons. C.R. at 57-58. A second dispute then arose after the parties disputed
whether the property had to be replatted prior to conveyance. The arbitrator again
found in favor of the Nickersons and issued a very thoughtful ruling that the
property could be conveyed by metes and bounds, with the understanding and
Page 2 of 33
expectation that it would not be eligible for city services, and the property did not
need to be replatted. C.R. at 60-65.
The arbitrator issued his ruling that the sale should move forward on August
27, 2015. Over the next two weeks, presumably out of malice or animus, Mr.
Gordon then:
Physically excluded the surveyor, Chuck Walker, from the
conveyance property to prevent completing the necessary survey.
Posted numerous “No Trespassing” signs on the conveyance property
and strung up a barbed wire fence within mere feet of the Nickerson
children’s play area and trampoline.
Cruelly cut down at least eight mature, healthy trees on the
conveyance property with a chainsaw, leaving three-foot tall stumps
in their place.
See C.R. at 49-51 ¶¶ 22-30.
The Nickersons sought a temporary injunction to, amongst other things, stop
Mr. Gordon from intentionally destroying the land he was already contractually
obligated to sell them. C.R. at 51-53. On September 24, 2015, the trial court held a
hearing on the temporary injunction, where each of Mr. Gordon’s bad acts was
well-documented and received into evidence by the court. See, e.g., 6 R.R. at 5-19
Page 3 of 33
(Exh. 1). The court granted the Nickersons’ application for temporary injunction
and set the case for a final hearing. C.R. at 101-03.
The final hearing occurred on October 21, 2015. Prior to the hearing, both
the Nickersons and the Gordons sought confirmation of the arbitrator’s award and
asked the trial court to approve the sale of the property. See C.R. at 45-55, 105-11.
At the final hearing, the district court:
Confirmed the arbitration award in its entirety;
Ordered the Gordons to complete the sale of the property to the
Nickersons;
Ordered the Gordons to pay the Nickersons an additional $8,571.00
for the cost to replace the eight mature trees that Mr. Gordon cut
down;
Awarded the Nickersons $9,563.48 in reasonable and necessary
attorney’s fees for the Gordons’ willful breach of the MSA and the
effort expended by the Nickersons in having to confirm the arbitration
award;
Page 4 of 33
Entered a permanent injunction preventing the Gordons’ from further
defacing or damaging the property prior to its sale to the Gordons.1
C.R. at 124-26.
After the court entered its final judgment, the Gordons asked for findings of
fact and conclusions of law. C.R. at 143-44. The court issued its findings on
November 30, 2015. C.R. at 162-65. The Gordons then filed a motion for new trial
on December 8, C.R. at 166-76, which the court denied on January 6, 2017. C.R. at
187.2 Rather than simply allow the sale of the property to move forward, which at
this point had already been mediated, bindingly arbitrated, and affirmed by the
district court, and which the Gordons had actively sought to occur at all prior
stages of the dispute before they malevolently and permanently altered the nature
of the conveyance property, the Gordons filed a notice of appeal on February 4,
2016, and this appeal followed. C.R. at 188-89.
1
Though in substance the district court issued a permanent injunction, in reality, should this
Court affirm and approve the ultimate transfer of the property, the injunction is only temporary
because the actions it prohibits the Gordons from taking will all be moot once the conveyance
property is owned by the Nickersons.
2
During this period, in accordance with the district court’s final judgment, the Nickersons hired
an attorney and title company to prepare the necessary paperwork to effectuate the sale. C.R. at
125 ¶ 5. The Nickersons also placed the entire purchase price into escrow, where it has remained
since. 4 R.R. at 24:20-25. Despite this, the Gordons refuse to sign the deed in violation of the
district court’s order even though the Nickersons stand ready to complete the sale. See C.R. at
126 (“IT IS FURTHER ORDERED . . . that Plaintiffs shall have all writs of execution,
possession, and other process necessary to enforce this judgment.”).
Page 5 of 33
I. SUMMARY OF APPELLEES’ RESPONSE
Even though the Gordons negotiated to sell the conveyance property to the
Nickersons and signed a valid, legally binding contract to do so, and even though
they wished to move forward with the sale at arbitration and at all prior
proceedings before the district court, for the very first time on appeal, they request
this Court to declare the MSA illegal and void and to prevent the property from
being sold. Not only did the Gordons not even formally plead the defense of
illegality before the district court, they actively asked the court to bless the sale of
the property at every prior phase of this litigation. Under basic principles of
fairness, equity, and the rules regarding preservation of error, this Court should
preclude the Gordons from even seeking the relief they now request, namely a
reversal of all of their prior positions.
Furthermore, though the Gordons now request this Court to declare the MSA
illegal, the MSA is legal on its face, and its legality was further validated in
arbitration and the district court’s final judgment that implicitly affirmed the same.
Finally, and perhaps most importantly, the Gordons ignore the applicable
standard of review throughout their lengthy appellate brief. As will be shown infra,
this Court’s review of the trial court’s actions is an “extremely narrow” review to
determine only whether the trial court showed a “clear abuse of discretion.” Each
and every one of the Gordons’ points of error was either not preserved for judicial
Page 6 of 33
review with the lower court or does not constitute reversible error under the
applicable standards of review. In any event, the record is clear that the district
court committed no reversible error, and this court should AFFIRM its judgment.
II. ARGUMENT IN RESPONSE
A. Two separate standards of review apply to the trial court’s final
judgment in this case.
The final judgment from which the Gordons appeal accomplished two
things. First, it confirmed the arbitrator’s June 5 and August 27, 2015 awards.
C.R. at 125 ¶ 1. Second, it granted a permanent injunction to the Nickersons to
prevent the Gordons from taking specific actions with regard to the property. Id. at
126. These two separate actions carry separate standards of review.
1. The standard of review in an appeal from a permanent injunction
is whether a clear abuse of discretion occurred.
The decision whether to grant a permanent or temporary injunction is
ordinarily within the sound discretion of the trial court. Lee v. Bowles, 397 S.W.2d
923, 926 (Tex. Civ. App.—San Antonio 1965, no writ). On appeal, review is
limited to whether the trial court’s ruling constituted a clear abuse of discretion.
Tyra v. Houston, 822 S.W.2d 626, 631 (Tex. 1991) (citing Priest v. Texas Animal
Health Comm’n., 780 S.W.2d 874, 875-876 (Tex. App.—Dallas 1989, no writ)).
Texas courts have opined that a clear abuse of discretion occurs when the trial
court’s “decision is so clearly wrong as to lie outside the zone within which
Page 7 of 33
reasonable persons might disagree.” McDonald v. State, 179 S.W.3d 571, 576
(Tex. Crim. App. 2005). Upon review, appellate courts are prohibited from
substituting their judgment for the trial court unless the trial court’s action was so
arbitrary that it exceeded the bounds of reasonable discretion. TMC Worldwide,
L.P. v. Gray, 178 S.W.3d 29, 36 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
Further, in reviewing an order granting or denying a temporary injunction, all
legitimate inferences from the evidence are reviewed in a manner most favorable
to the trial court’s judgment. Id. (citing CRC-Evans Pipeline Int’l v. Myers, 927
S.W.2d 259, 262 (Tex. App.—Houston [1st Dist.] 1996, no writ)).
2. The standard of review in an appeal from the confirmation of an
arbitrator’s award is de novo but “extremely narrow.”
In this case, both parties filed motions to confirm the arbitration awards
instead of motions for summary judgment on the arbitration awards. C.R. at 53,
105. For this reason,3 review of the trial court’s decision to confirm the arbitration
award is de novo, and an appellate court may review the entire record. In re
Chestnut Energy Partners, Inc., 300 S.W.3d 386, 397 (Tex. App.—Dallas 2009,
pet. denied). Because Texas law favors arbitration, however, review is “extremely
3
The standard of review applicable to a judgment confirming an arbitration award is affected by
the nature of the proceedings utilized by the trial court. See Mariner Fin. Group, Inc., 79 S.W.3d
at 35 (affirming court of appeals’ judgment applying summary judgment standard of review to
judgment obtained via summary judgment). But the summary judgment standard of review is
inapplicable to a motion to confirm an arbitration award. See Teleometrics Int’l, Inc. v. Hall, 922
S.W.2d 189, 193 (Tex. App.—Houston [1st Dist.] 1995, writ denied).
Page 8 of 33
narrow.” See Hisaw & Assoc. Gen. Contractors, Inc. v. Cornerstone Concrete
Sys., Inc., 115 S.W.3d 16, 18 (Tex. App.—Fort Worth 2003, pet. denied); IPCO-G
& C Joint Venture v. A.B. Chance Co., 65 S.W.3d 252, 255-56 (Tex. App.—
Houston [1st Dist.] 2001, pet. denied). All reasonable presumptions are indulged
in favor of the award, and none against it. Statewide Remodeling, Inc. v. Williams,
244 S.W.3d 564, 567-68 (Tex. App.—Dallas 2008, no pet.).
An arbitration award has the same effect as a judgment of a court of last
resort; courts must protect against unwarranted judicial interference of arbitration
awards based on generally claimed violations of public policy. CVN Group, Inc. v.
Delgado, 95 S.W.3d 234, 238-39 (Tex. 2002); Bailey & Williams v. Westfall, 727
S.W.2d 86, 90 (Tex. App.—Dallas 1987, writ ref’d n.r.e.). Review of an arbitration
award is so limited that even a mistake of fact or law by the arbitrator in the
application of substantive law is not a proper ground for vacating an award.
Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 429 (Tex. App.—Dallas 2004, pet.
denied). Arbitration awards are entitled to great deference by the courts. Id.
B. The Gordons waived all arguments regarding the illegality of the
contract by failing to object to the district court.
In their first point of error, the Gordons complain that the trial court erred by
enforcing a contract that they assert violates certain provisions of the Local
Government Code and City of Austin Code of Ordinances. Specifically, the
Gordons protest that Tex. Loc. Gov’t Code § 212.004 and § 232.001 require the lot
Page 9 of 33
to be platted prior to sale. Appellants’ Brief at 20-21. Because there is no dispute
that the lot in question cannot be platted prior to sale, the Gordons assert that
selling the land at all is illegal and thus the contract in question is also illegal. Id. at
23-24.
However, the record is clear on its face that the Gordons failed to object to
the claimed illegality of the contract with the trial court. Foremost, the Gordons did
not plead the affirmative defense of illegality of the contract before the trial court.
C.R. at 33 ¶ 2. Instead, they only asserted defenses of equitable estoppel,
repudiation, and waiver. Id. In fact, during the hearing final hearing on this matter
before the district court, the Gordons repeatedly asked the court to approve the sale
of the property, which is the exact opposite of the relief they now request on
appeal. 3 R.R. at 32:22-33:13. Counsel for Mr. Gordon stated at the hearing:
“Mr. Gordon is prepared to agree to all the terms of the arbitration,
but we need the court order for him to not have that civil and criminal
liability.”
...
“We’re – we’re ready to sell the property, we’re ready to move
forward, we’re ready to have a debate over whether or not Mr.
Gordon was within his rights to cut down these trees, but we’ve got to
get the judgment or else he’s going to have civil and criminal liability
and we’re going to have to come back and try to unpop this popcorn.”
Id. at 35:1-36:8 (emphasis added).
Again, after the district court’s entered its final judgment and the Gordons
Page 10 of 33
filed a “Motion to Modify or Alter Judgment, or Alternatively, Motion for New
Trial,” they failed to seek the relief they now request, namely, rescission of the
contract. C.R. at 166-76. Instead, they requested that the lower court approve the
very arbitration award for which they now seek reversal. As their proposed relief,
the Gordons specifically requested “that the Court modify its judgment and issue
an Amended Final Judgment in conformance with the August 27, 2015 Arbitration
Award presented to the Court in Plaintiffs’ Motion to Confirm Arbitration Award.”
Id. at 175 (emphasis added).
Even the district court’s final judgment outlines that the parties agreed they
were both seeking for the contract to be enforced. The judgment unambiguously
stated that “[t]he parties seek confirmation of the arbitration awards rendered by
arbitrator Claude E. Ducloux on June 5, 2015 and August 27, 2015 (‘the
Arbitration Awards’), pursuant to an agreement of arbitration between Plaintiffs
and Defendants.” C.R. at 124.
It is a well-known appellate principle that the failure to object to alleged
errors before a trial court waives consideration of the errors on appeal. Under
Texas Rule of Appellate Procedure 33, as a prerequisite to presenting a complaint
for appellate review, the record must show that the complaint was actually made to
the trial court. Tex R. App. P. 33.1. Further, in order to be preserved for review, not
only must the complaint actually be made but it must also clearly be ruled upon. Id.
Page 11 of 33
§ (a)(2). See also Wal-Mart Stores v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999)
(“To preserve a complaint for appellate review, a party must present to the trial
court a timely request, motion, or objection, state the specific grounds therefore,
and obtain a ruling.”); Franco v. Slavonic Mut. Fire Ins., 154 S.W.3d 777, 784-85
(Tex. App.—Houston [14th Dist.] 2004, no pet.) (error was not preserved for
appeal when trial court did not rule on special exception).
Here, the record is void of requests by the Gordons at the October 21, 2015
Hearing on the Merits and Motion to Confirm an Arbitration Award to void, strike,
or otherwise deny enforcement of the parties’ original contract to sell a portion of
the property. It is axiomatic under basic standards of appellate review that they
cannot now request this Court to grant the exact opposite relief that they requested
the trial court to grant. Not only did the Gordons not want the contract to be voided
by the district court, they actively sought for the district court to enforce it. See,
e.g., C.R. at 110 (prior to the final hearing on the merits, Defendants asked the
district court to “enter[] judgment affirming the Arbitration Award dated August
27, 2015 . . .”). Therefore, the Gordons waived all claims that the contract is illegal
in the trial court, and they are now precluded from seeking to rescind the contract
in this Court.
C. The contract in question is not illegal.
1. There is no illegality on the face of the contract.
Page 12 of 33
The Gordons assert in their first point of error that the contract in question is
illegal and void because the property is not eligible for replatting, and replatting
must occur before the property can legally be transferred to the Gordons.
Appellants’ Brief at 22-24. In support, they cite Lewis v. Davis, 145 Tex. 468, 472,
199 S.W.2d 146, 148-49 (1947), for the proposition that a contract to do a thing
which cannot be performed without a violation of law is void. While true, the
proposition is incomplete. It is likewise true that where “the illegality does not
appear from the contract itself or for the evidence necessary to prove [the contract],
but depends upon extraneous facts, the defense [of illegality] is new matter, and, to
be available, it must be pleaded.” Mullin v. Nash-El Paso Motor Co., 250 S.W.
472, 475 (Tex. Civ. App.—El Paso 1923, writ ref’d); see also After Hours, Inc. v.
Sherrard, 456 S.W.2d 227, 229 (Tex. App.—Austin 1970, rev’d on other grounds)
(illegality must be pleaded and presented to the court when not on the face of the
contract).
The MSA is nothing more than a contract for the sale of land. In Texas,
parties have the right to contract with relation to property as they see fit, provided
they do not contravene public policy and their contracts are not otherwise illegal.
Scoville v. Springpark Homeowner’s Association, Inc., 784 S.W.2d 498, 502 (Tex.
App.—Dallas 1990, writ denied). The MSA is not a contract for murder,
conspiracy, or any other illegal act typically contemplated by the defense of
Page 13 of 33
illegality. The MSA simply obligates the Gordons to sell the conveyance property
to the Nickersons, and is clearly valid on its face.
Further, the Nickersons’ land use expert, Beryl Crowley, testified that it was
not illegal for the sale of the property to go through via metes and bounds only, and
the arbitrator relied on Ms. Crowley’s testimony in reaching his own independent
conclusion that the contract was not illegal. C.R. at 63-64 (“[I]t is not unreasonable
to find that all of these Codes, Rules and Statutes seem to reflect an intention that
the parties cannot create an illegal lot with an expectation that it would be subject
to [the] same rights as legally-platted lots . . . I find that, in accordance with the
testimony of Ms. Crowley, it is not illegal for the sale to go through.”). Id. at 64
(emphasis added). Under the Gordons’ newly-asserted interpretation of the
contract on appeal, it would be impossible for the property to ever be sold to any
party because it cannot be platted. Texas public policy would not favor such an
interpretation.
2. Even if the contract were illegal in theory, it is not void because it
can be performed in a legal manner.
An illegal contract is one in which the parties undertake what the law
forbids. Franklin v. Jackson, 847 S.W.2d 306, 309 (Tex. App.—El Paso 1992, writ
denied). Even so, a contract which could have been performed in a legal manner
will not be declared void simply because it may have been performed in an illegal
manner. Id. (citing Lewis, 199 S.W.2d at 148-49); Wade v. Jones, 526 S.W.2d
Page 14 of 33
160, 162-63 (Tex. Civ. App.—Dallas 1975, no writ). Courts must presume that
contracts are legal, and the burden to prove illegality is on the party asserting it, in
this case,4 the Gordons. Franklin, 847 S.W.2d at 310.
The facts in Franklin are analogous to this case. In Franklin, the parties
entered into a multi-year agreement in which the seller agreed to sell the buyer its
peanut allotment annually for a term of four years. Later, after the parties disputed
who had breached the contract, the buyer asserted that the contract was illegal and
void and moved for summary judgment on these grounds. Id. at 308. The trial
court granted summary judgment and rescinded the contract based on the buyer’s
assertion that multi-year sales contracts of peanuts were per se illegal under then-
existing federal U.S. Department of Agriculture rules. Id. Under USDA
procedures, such contracts were only legal if approved by a specific committee,
and the committee was not legally allowed to approve multi-year agreements. Id.
at 310. The court of appeals reversed because the contract could have been
performed in a legal manner; namely, the committee could have “simply
indicate[d] that [the contract] would only be approved one year at a time.” Id.
Similarly, the contract in this case can be performed in a legal manner. The
City of Austin’s decision that the property is not eligible for platting does not state
4
But note that the Gordons only assert that the contract is illegal now; they asserted the exact
opposite before the district court.
Page 15 of 33
that it can never be replatted or that the sale of the property cannot go through; it
only states that the property is “not eligible to receive utility service until it has
been included in a recorded subdivision plat.” 6 R.R. at 65-68 (Ex. 4). But this fact
was already contemplated and embodied in the arbitrator’s award. C.R. at 136
(“other than a special warranty that the Grantees ‘own the dirt’ being conveyed . . .
the Nickersons acknowledge that [they] are taking this fractional tract without any
expectation or understanding on their (the Grantee’s) part, nor warranty, promise,
or representation by the Gordons that the land being purchased by metes and
bounds will ever be able to qualify for governmental services.”). Thus, the contract
can be performed in a legal manner because the only limitation on the property is
that it is excluded from city services, which the parties already knew and bargained
for, rather than the inability of the property to be sold at all.
D. The district court’s final judgment resolves any issues regarding the
potential illegality of the contract.
1. Texas Property Code § 12.002(g) allows the property to be
subdivided and sold through a court order.
The arbitrator ruled on August 27, 2015 that the sale of the property by
metes and bounds only was not illegal under Texas law. C.R. at 135 (“Although I
am cognizant that the issue of illegality is always preserved for the parties to take
to litigation, I find that, in accordance with the testimony of Ms. Crowley, it is not
Page 16 of 33
illegal for the sale to go through.”). Even so, under Chapter 12 of the Texas
Property Code:
(b) A person may not file for record or have recorded in the county
clerk’s office a plat or replat of a subdivision of real property unless it
is approved as provided by law by the appropriate authority . . .
(c) [A] person who subdivides real property may not use the
subdivision’s description in a deed of conveyance, a contract for a
deed, or a contract of sale or other executory contract to convey that is
delivered to a purchaser unless the plat or replat of the subdivision is
approved and is filed for record with the county clerk of the county in
which the property is located . . .
Tex. Prop. Code § 12.002(c).
These provisions essentially require anyone who subdivides and sells
property to replat the property prior to sale and recording. However, subsection-(g)
of the same law allows a district court to negate subsections (b) and (c)’s
requirements through court order. Subsection-(g) simply states that “[t]his section
does not apply to a partition by a court.” Id. § 12.002(g).
2. The district court’s final judgment orders the property to be sold
and is therefore a “partition by a court” under Property Code §
12.002(g).
The district court’s final judgment dictates that, among other things,
“Defendants are ORDERED to convey to Plaintiffs the portion of lot 13 identified
in the Mediated Settlement Agreement (‘MSA’) . . . (‘the Property’) . . . .” C.R. at
125 ¶ 2. The MSA, which was attached as Exhibit C to the judgment, obligates the
Nickersons to purchase and the Gordons to convey “a portion” of the Gordons’
Page 17 of 33
property. C.R. at 138 ¶ 1.
Though the Texas Property Code does not specifically define the term
“partition,” Black’s Law Dictionary defines it as “1. Something that separates one
part of a space from another. 2. The act of dividing; esp., the division of real
property . . . .” Black’s Law Dictionary (9th Ed.) (2009). By its clear terms, the
MSA compels the Gordons to convey a portion of their property to the Nickersons.
The final judgment, then, is safely characterized as a “partition by a court”
because it enforces the terms of the MSA to which the parties agreed.
Furthermore, the Gordons agreed with this interpretation at the trial court by
making this very same argument. See, e.g., 3 R.R. at 33:9-13 (“MR. R.
GORDON: And under Texas Property Code 12.002(g) under a judicial order the
civil and criminal liability that would otherwise be subject to Mr. Gordon would no
longer be in play if we have a court order requiring the subdivision of this
property.”); 3 R.R. at 35:17-25 (“MR. R. GORDON: So that’s what – that’s why
we’re seeking the motion to confirm arbitration. If we just subdivide this property
without coming in front of Your Honor and without getting a court order and final
judgment, he would be subject to the same civil and criminal liability. Under the
Property Code 12.02(g) [sic], if the Court orders the subdivision of the property,
then he does not have that liability. We’re – we’re kind of arguing over nothing
here.”). Therefore, since the district court’s final judgment constitutes a court-
Page 18 of 33
ordered partition of the property, any issues regarding the contract potentially
violating Texas law are ultimately moot.5
3. The Gordons’ fear of criminal prosecution is unfounded.
The Gordons assert they fear criminal prosecution if the sale of the property
is allowed to move forward. But they ignore the fact that under Local Government
Code § 212.018, prosecution can only occur “[a]t the request of the governing
body of the municipality. . .”. Tex. Loc. Gov’t Code § 212.018(a). The Gordons
offered no evidence or proof to the trial court, and they offer no evidence or proof
to this Court, that prosecution has been threatened, implied, or even considered by
the City of Austin in this case. In short, they offer no credible reason to believe
prosecution could ever occur.
E. The district court did not modify the arbitrator’s ruling.
1. The plain text of the district court’s order confirms the ruling.
As stated supra, under the Texas Arbitration Act (“TAA”), arbitration
awards are entitled to great deference by the courts, and judicial review of an
arbitration award is extremely narrow, even where the arbitrator misapplies the
law. Crossmark, 124 S.W.3d at 429. In their second point of error, the Gordons
complain that the trial court improperly modified the arbitrator’s ruling by
5
By extension, this Court’s affirmation of the district court would make the Gordons’ illegality
arguments even more irrelevant.
Page 19 of 33
awarding the Nickersons $8,571.00 for the trees that Mr. Gordon destroyed. But
the clear language of the district court’s order indicates that it confirmed the
arbitrator’s ruling outright. C.R. at 125 ¶ 1 (“The Court hereby CONFIRMS the
Arbitration Awards of June 5, 2015 . . . and August 27, 2015 . . .”).
2. The additional damages awarded to the Nickersons were not
related to arbitration and therefore are not a modification to the
arbitrator’s award.
The $8,571.00 was awarded because of Mr. Gordon’s flagrant breach of the
MSA, not as a modification of the arbitrator’s award. 3 R.R. at 12 (“MR. SNELL: -
- I removed those claims. The only claims left are breach of the MSA and I’m
asking for $14,000 related to the value of the trees that were cut down.”). As Mr.
Nickerson testified at the hearing to confirm the arbitration award:
Q. Okay. Now, are you also seeking costs related to breach of
the MSA that occurred after the arbitrator’s final ruling?
A. We are.
Q. Okay. And what are those costs related to?
A. After the arbitrator’s ruling that we should move forward
with this and complete the sale, we’ve had to have attorney fees to go
to a temporary restraining order hearing and an injunction hearing,
and then we had damages because Mr. R. Gordon cut down the trees
on the property to be conveyed, leaving stumps and brush that needs
to be removed and replant trees that need to be replaced.
3 R.R. at 21:10-22.
Mr. Nickerson also testified as follows:
Q. Okay. And have you ever had an opportunity to ask for those
Page 20 of 33
damages in any other proceeding? Did you have an opportunity to
present those to -- to Claude Ducloux?
A. No, because they occurred more recently.
Q. Okay. And are you asking the Judge to modify Claude
Ducloux's ruling or are you asking for a – the Judge to award you
those damages for breach of the MSA?
A. For the breach of the MSA.
3 R.R. at 24:10-18.
Of note, the Gordons did not object to any of this testimony, which was
properly admitted before the court. Therefore, they waived all arguments regarding
the allocation of damages on appeal. See Tex. R. App. P. 33.1; McKenzie, 997
S.W.2d at 280.
3. The district court’s award of additional damages is a “cost” or
“disbursement” under Civil Practice & Remedies Code §
171.091(b).
Under the TAA, when a court confirms an arbitration award, it is also
entitled to award “disbursements.” Tex. Civ. Prac. & Rem. Code § 171.091(b)(2).
Neither the Civil Practice & Remedies Code nor Texas case law defines this term,
but the Gordons offer no reason why the trial court’s award of additional damages
cannot constitute a disbursement under the statute. Black’s Law Dictionary defines
a disbursement as “The act of paying out money, commonly from a fund or in
settlement of a debt or account payable.” Black’s Law Dictionary (9th Ed.) (2009).
Under basic principles of equity and the prevention of unjust enrichment, the
Gordons were indebted to the Nickersons from the moment they permanently
Page 21 of 33
altered the conveyance property.
Similarly, the Gordons offer no reason why the additional damages for the
malicious destruction of the trees cannot constitute “costs” under § 171.091(b)(1).
Had Mr. Gordon not partially destroyed and altered the property, the Nickersons
would not have had to expend the costs associated with amending their petition,
seeking a permanent injunction, or confirming the arbitrator’s ruling in the district
court. Instead, with a legally binding MSA and arbitration ruling already in place,
the Nickersons could have dismissed their claims and the parties could have moved
forward with the sale (as all parties desired at the time). Under the plain language
of § 171.091(b)(1), the district court was free to consider the additional damages
for destroying the trees as newly-incurred “costs of the application.” Id.
F. The district court did not err in awarding attorney’s fees.
1. Fees were available under Civil Practice & Remedies Code §
38.001 for breach of the MSA.
The Gordons assert in their third point of error that the trial court erred in
awarding the Nickersons $9,563.48 in “non-segregated” attorney’s fees. But such
fees were justified both for a breach of the MSA and for the efforts the Nickersons
had to undertake to confirm the arbitration award and obtain a permanent
Page 22 of 33
injunction.6
In Texas, attorney’s fees are generally available for breach of contract
claims. Tex. Civ. Prac. & Rem. Code § 38.001(8). According to the Gordons,
attorney’s fees were not available under the MSA because the agreement states that
“Each party shall otherwise bear his her its [sic] own attorneys fees and mediation
fees.” C.R. at 138 ¶ 6. However, in the context of a negotiated settlement
agreement, this statement applied only to the underlying litigation brought by the
Nickersons prior to mediation and the negotiations surrounding the creation of the
MSA, not to a breach of the MSA itself. Under Texas law, to waive a statutory
right to attorney’s fees, the waiver must “specifically preclude [a] statutory claim
to an award of attorney’s fees under Section 38.001.” Nat’l Bank v. Sandia Mortg.
Corp., 872 F.2d 692 (5th Cir. 1989) (interpreting Texas law); see also Bank of Am.,
N.A. v. Hubler, 211 S.W.3d 859, 865 (Tex. App.—Waco 2006, pet. granted,
judgm’t vacated w.r.m.) (holding that the claimant did not waive her statutory right
to attorney’s fees because the contract provision that the bank would not be liable
“for attorney’s fees incurred,” was “too general to apprise [the claimant] of what
right she [was] relinquishing, namely her statutory right to attorney’s fees under
Chapter 38.”). No such waiver exists in the MSA.
6
Notably, the Gordons sought their own attorney’s fees before the trial court for their own
efforts to confirm the arbitration award under the same provisions they now assert are not
applicable to the Nickersons’ efforts. See C.R. at 109 ¶ 17.
Page 23 of 33
This case is identical to Herring v. Heron Lakes Estates Owners Association,
in which the Fourteenth Court of Appeals affirmed the prevailing party’s right to
attorney’s fees following a breach of a negotiated settlement agreement. No. 14-
09-00772-CV, 2011 Tex. App. LEXIS 5 (Tex. App.—Houston [14th Dist.] 2011,
pet. dismissed). The underlying suit concerned a property owners’ association’s
claims against individual homeowners in the subdivision for violating various
restrictive covenants. Id. at 1. Attorney’s fees were not available to either party in
the underlying claim, but the parties negotiated a settlement agreement on the
record before the court. Id. at 2-3. Later, the owners’ association alleged the
homeowners breached the settlement agreement, and the trial court granted
summary judgment to the owners’ association on the issue of breach and also
awarded the owners’ association its attorney’s fees. Id. at 3. The homeowners
appealed, arguing that the owners’ association waived its right to attorney’s fees
under an explicit provision of the settlement agreement that stated “there will be no
attorneys’ fees awarded on either side.” Id. at 16. The court of appeals affirmed
the district court’s judgment, finding:
The contract provision at issue in this case did not specifically
preclude a statutory award of attorney’s fees for a breach of the
settlement agreement itself. Rather, the parties agreed that the parties
would bear their own attorney’s fees incurred in the negotiation and
settlement, not that the [homeowners’ association] waived attorney’s
fees incurred to enforce the settlement agreement. Accordingly, the
trial court did not err in awarding attorney’s fees accruing from the
point when [the homeowners] breached the agreement.
Page 24 of 33
Id. at 19-20.
Here, at the very least, the Gordons breached paragraph 8 of the MSA by
stringing up barbed wire and “No Trespassing” signs around the water well, thus
preventing the Nickersons’ “uninterrupted” access to it. See C.R. at 138 ¶ 8; 6 R.R.
at 5-10 (Exh. 1). Just as in Herring, the MSA in this case contains no explicit
language waiving the right to fees in the event the agreement itself is breached.
2. Attorney’s fees were available for efforts to confirm the
arbitration award.
When a party’s challenge to an arbitration award is “without merit” and its
refusal to abide by the award is “without justification,” a trial court can award
attorneys’ fees to the party seeking to confirm the arbitration award. Stage Stores,
Inc. v. Gunnerson, 477 S.W.3d 848, 863-64 (Tex. App.—Houston [1st Dist.] 2015,
no pet.) (citing Executone Info. Sys., Inc. v. Davis, 26 F.3d 1314, 1331 (5th Cir.
1994). Even in the event fees were not available under Chapter 38 of the Civil
Practice & Remedies Code, the Gordons’ egregious actions in this case easily meet
the “without justification” standard for awarding fees.
3. The fees were not “non-segregated.”
The Gordons complain that the fees were not segregated between the
Nickersons’ breach of contract claim, their efforts to seek an injunction, and their
motion to confirm the arbitration award. This is not the case. All awarded fees
Page 25 of 33
were incurred only after early September 2015 when the Gordons breached the
MSA by excluding the surveyor, destroying trees, and preventing access to the
well. 6 R.R. at 24-38 (Exh. 4-6); 6 R.R. at 39-44 (Exh. 7-8). After this point, all
fees related directly to pursuing a claim that was eligible for fees, namely the
Nickerson’s breach of contract claim. As counsel for the Nickersons informed the
trial court:
MR. SNELL: We almost agree on everything, but within our second
amended petition, which we want to be heard on today and we set that
for hearing, we have requested damages related to the breach of the
mediated settlement agreement.
THE COURT: Okay.
MR. SNELL: So we intend to put on evidence of -- of those damages.
THE COURT: Okay.
MR. SNELL: And that’s the tree cutting, Your Honor.
3 R.R. at 7:11-21.
MR. SNELL: And that’s about ten minutes of testimony from Jim
Nickerson, and then I’m asking for my attorney fees, and so -- and
I’ve made no secret what I’m seeking. In fact, we’ve been arguing
about it.
THE COURT: Okay.
MR. SNELL: So this -- you know, there – there’s no undue prejudice,
there’s no surprise. Depositions, they’ve -- Jim Nickerson has testified
twice in this case.
3 R.R. at 12:14-22.
Over the Gordons’ objection, the records supporting the fees were properly
admitted through the direct testimony of counsel for the Nickersons at the district
court. 3 R.R. at 54:4-57:18, 58:4-64:16. The Gordons do not assert that receiving
Page 26 of 33
these exhibits was a “clear abuse of discretion” or that it is even reviewable under
the “extremely narrow” assessment of the district court’s actions that is allowed by
this Court. See Tyra, 822 S.W. 2d at 631; Hisaw, 115 S.W.3d at 18; see also Tex.
R. App. P. 44.1(a) (“No judgment may be reversed on appeal on the ground that
the trial court made an error of law unless the court of appeals concludes that the
error complained of: (1) probably caused the rendition of an improper judgment; or
(2) probably prevented the appellant from properly presenting the case to the court
of appeals.”).
Furthermore, the Nickersons’ fees to pursue the injunction and confirmation
the arbitration award were “inextricably intertwined” with their MSA breach
claims because all the claims arose out of the same transactions and depended on
proof of the same facts. See, e.g., Air Routing Int’l Corp. v. Britannia Airways,
Ltd., 150 S.W.3d 682 (Tex. App.—Houston [14th Dist.] 2004, no pet.). As such, it
was not error for the district court to award the Nickersons all of their requested
fees.
G. All the remaining points of error asserted by the Gordons are without
merit.
In their final points of error, the Gordons assert that the trial court’s
temporary injunction order did not comply with Texas Rule of Civil Procedure 683
and the order was too broad, thereby preventing them from exercising their legal
rights. Appellants’ Brief at 33-40. Both of these points are without merit.
Page 27 of 33
First, the Gordons waived any errors concerning the form or substance of the
temporary injunction because they were willing to agree to all of its terms before
the trial court. 2 R.R. at 7:21-9:20. As shown repeatedly throughout this brief, it is
nonsensical for the Gordons to now complain to this Court that their rights were
impeded by the trial court when they essentially agreed to all of the trial court’s
rulings concerning what actions they were prohibited from taking regarding the
conveyance property.7
Second, the temporary injunction was clearly needed to preserve the status
quo and prevent irreparable harm to the Nickersons, as Mr. Gordon had already
disobeyed the court’s prior order to remove the barbed wire fence he had erected
next to the Nickerson children’s trampoline. 2 R.R. at 60:8-18. The court made this
clear when it granted the application. 2 R.R. at 58:4-66:23. As the court astutely
recognized:
THE COURT: -- between now and then. As long as he doesn’t violate
it, there’s no -- all we’re doing is keeping the status quo. We just don’t
want any more trees coming down, we don’t want the land changed,
and because there’s -- you know, as you mentioned, there’s -- there
are some -- I don’t want him coming in and saying, “Well, the
contract” -- you know, “this mediated settlement agreement didn’t say
that I could burn down the land.” I mean, that’s not okay. We want the
land to remain exactly as it is and we certainly don’t want any
7
See C.R. at 125 (noting in the final judgment that “[t]he parties have AGREED and IT IS
THEREFORE ORDERED, that Plaintiffs’ request for permanent injunctive relief should be an is
hereby in all things GRANTED.”) (emphasis added). The Gordons never objected to the
language in the order reflecting the trial court’s understanding that the Gordons did not dispute
the terms of the permanent injunction.
Page 28 of 33
tampering of the wells and we don’t want any children harmed. All
right? . . .
2 R.R. at 62:19-63:6.
Third, the temporary injunction order clearly complies with Rule 683 on its
face. C.R. at 101-03. The Gordons cannot reasonably dispute that the order sets for
the reasons for its issuance, is specific in its terms, and describes in reasonable
detail the acts the Gordons were restrained from taking. Tex. R. Civ. P. 683.
Fourth, as indicated elsewhere throughout this brief, all of the actions the
injunction prevents the Gordons from taking with respect to the conveyance
property are immediately moot upon transfer of the property to the Nickersons.
Fifth, the Gordons are simply incorrect that the terms of the permanent
injunction restrain them from exercising their legal rights. To the contrary, the
Gordons never possessed any rights to dispossess or alter the Nickersons’ access to
the water well to begin with under the easement that had already been in place for
nearly two decades. C.R. at 126 ¶¶ 1-4; see also C.R. at 13-18. And any other
“rights” the Gordons brazenly assert that they possess regarding the land generally
were forfeited when they breached the MSA and permanently altered the nature of
the conveyance property, thereby depriving the Nickersons of the benefit of the
bargain they received when they agreed to purchase the property. Id. ¶¶ 5-7.
Page 29 of 33
III. CONCLUSION AND PRAYER FOR RELIEF
The Gordons filed a frivolous appeal by requesting this Court to reach
conclusions that are exactly opposite of the conclusions they sought the trial court
to reach. To reverse the entire transaction as the Gordons request would not only
irreparably harm the Nickersons by requiring them to continue to litigate issues
that have already been mediated and arbitrated twice, it would jeopardize their
homestead’s access to potable water. Further, aside from the sound legal arguments
set out supra, affirming the district court is the most equitable result under the
circumstances. See, e.g., Lincoln Nat’l Life Ins. Co. v. Rittman, 790 S.W.2d 791,
794 (Tex. App.—Houston [14th Dist.] 1990, no writ) (“[Basic principles of
equity], after all, remains the test. Perhaps this approach lacks analytical rigor, but
it was precisely a scrupulous adherence to rigor that resulted in the growth of the
courts of equity in the first place. While we do not deprecate the logic of
appellant’s legal position, there sometimes arise cases where law goes only so far
and the chancellor must step in.”).
The Nickersons respectfully request this Court AFFIRM the trial court’s
final judgment in all aspects. In the alternative, to the extent the Court deems it
necessary, the Nickersons request this Court include in its judgment an affirmation
that the contract in question is valid under Texas law and the property be conveyed
as agreed by the parties in the MSA. The Nickersons further request their costs of
Page 30 of 33
court pursuant to Texas Rule of Appellate Procedure 43.4. The Nickersons also
request their attorney’s fees on appeal in the amount of $15,000 under Tex. Civ.
Prac. & Rem. Code § 38.001(8) for the Gordons’ continued concerning their
obvious breach of the MSA. Additionally, the Nickersons request this Court to
ORDER the Gordons to sign and transmit the deed finalizing the sale of the
property within five (5) days of the Court’s order. Finally, the Nickersons request
all other relief in law and in equity to which they are reasonably entitled.
Respectfully submitted,
The Snell Law Firm, P.L.L.C.
BY: /s/ Jason W. Snell
JASON W. SNELL
Bar No. 24013540
JOHN ROBERT SKRABANEK
Bar No. 24070631
The Snell Law Firm, PLLC
Chase Tower
221 W. 6th Street, Suite 900
Austin, Texas 78701
(512) 477-5291 – Telephone
(512) 477-5294 – Fax
firm@snellfirm.com – Email
ATTORNEYS FOR APPELLEES
Page 31 of 33
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4, I certify that Appellees’ Brief in Response
contains 7,661 words. This is a computer-generated document created in
Microsoft Word, using 14-point typeface for all text, except for footnotes, which
are in 12-point typeface. In making this Certificate of Compliance, I am relying on
the word count provided by the software used to prepare the document.
/s/ Jason W. Snell
Jason W. Snell
CERTIFICATE OF SERVICE
I certify that on the 22nd day and 30th day of August 2016, I caused the
foregoing document to be electronically filed with the Clerk of the Court pursuant
to the Electronic Filing Procedures and using the CM/ECF system, and that a true
and correct electronic copy was thereby caused to be served on Appellants.
Jeremie Gordon and Amber Arnold-Gordon
14284 FM 2769
Leander, Texas 78641
Telephone: (512) 838-1849
Facsimile: (512) 410-0263
Jeremie.gordon@gmail.com
Amber.renee.gordon@gmail.com
Pro Se Appellants
/s/ Jason W. Snell
Jason W. Snell
Page 32 of 33
APPENDIX
ITEM Document
A Texas Property Code § 12.002
B Texas Civil Practice & Remedies Code § 38.001
Page 33 of 33
ITEM-A
Sec. 12.002. SUBDIVISION PLAT; PENALTY. (a) The county clerk or
a deputy of the clerk with whom a plat or replat of a subdivision of real property is
filed for recording shall determine whether the plat or replat is required by law to
be approved by a county or municipal authority or both. The clerk or deputy may
not record a plat or replat unless it is approved as provided by law by the
appropriate authority and unless the plat or replat has attached to it the documents
required by Subsection (e) or by Section 212.0105 or 232.023, Local Government
Code, if applicable. If a plat or replat does not indicate whether land covered by
the plat or replat is in the extraterritorial jurisdiction of the municipality, the county
clerk may require the person filing the plat or replat for recording to file with the
clerk an affidavit stating that information.
(b) A person may not file for record or have recorded in the county clerk's
office a plat or replat of a subdivision of real property unless it is approved as
provided by law by the appropriate authority and unless the plat or replat has
attached to it the documents required by Section 212.0105 or 232.023, Local
Government Code, if applicable.
(c) Except as provided by Subsection (d), a person who subdivides real
property may not use the subdivision's description in a deed of conveyance, a
contract for a deed, or a contract of sale or other executory contract to convey that
is delivered to a purchaser unless the plat or replat of the subdivision is approved
and is filed for record with the county clerk of the county in which the property is
located and unless the plat or replat has attached to it the documents required by
Subsection (e) or by Section 212.0105 or 232.023, Local Government Code, if
applicable.
(d) Except in the case of a subdivision located in a county to which
Subchapter B, Chapter 232, Local Government Code, applies, Subsection (c) does
not apply to using a subdivision's description in a contract to convey real property
before the plat or replat of the subdivision is approved and is filed for record with
the county clerk if:
(1) the conveyance is expressly contingent on approval and
recording of the final plat; and
(2) the purchaser is not given use or occupancy of the real property
conveyed before the recording of the final plat.
(e) A person may not file for record or have recorded in the county clerk's
office a plat, replat, or amended plat or replat of a subdivision of real property
unless the plat, replat, or amended plat or replat has attached to it an original tax
certificate from each taxing unit with jurisdiction of the real property indicating
that no delinquent ad valorem taxes are owed on the real property. If the plat,
replat, or amended plat or replat is filed after September 1 of a year, the plat,
replat, or amended plat or replat must also have attached to it a tax receipt issued
by the collector for each taxing unit with jurisdiction of the property indicating that
the taxes imposed by the taxing unit for the current year have been paid or, if the
taxes for the current year have not been calculated, a statement from the collector
for the taxing unit indicating that the taxes to be imposed by that taxing unit for the
current year have not been calculated. If the tax certificate for a taxing unit does
not cover the preceding year, the plat, replat, or amended plat or replat must also
have attached to it a tax receipt issued by the collector for the taxing unit indicating
that the taxes imposed by the taxing unit for the preceding year have been paid.
This subsection does not apply if:
(1) more than one person acquired the real property from a decedent
under a will or by inheritance and those persons owning an undivided interest in
the property obtained approval to subdivide the property to provide each person
with a divided interest and a separate title to the property~ or
(2) a taxing unit acquired the real property for public use through
eminent domain proceedings or voluntary sale.
(f) A person commits an offense if the person violates Subsection (b), (c),
or (e). An offense under this subsection is a misdemeanor punishable by a fine of
not less than $10 or more than $1,000, by confinement in the county jail for a term
not to exceed 90 days, or by both the fine and confinement. Each violation
constitutes a separate offense and also constitutes prima facie evidence of an
attempt to defraud.
(g) This section does not apply to a partition by a court.
ITEM-B
Sec. 38.001. RECOVERY OF ATTORNEY'S FEES. A person may
recover reasonable attorney's fees from an individual or corporation, in addition to
the amount of a valid claim and costs, if the claim is for:
(1) rendered services~
(2) performed labor;
(3) furnished material~
(4) freight or express overcharges;
(5) lost or damaged freight or express;
(6) killed or injured stock~
(7) a sworn account; or
(8) an oral or written contract.
Jeremie Gordon and Amber Arnold-Gordon v. James B. Nickerson and Julia A. Nickerson, Trustees of the Nickerson Revocable Living Trust
Combined Opinion